Mississippi | FORECLOSURE FRAUD | by DinSFLA

Tag Archive | "mississippi"

Mississippi Appeals Court Reversal “Service of Process Fail, Default Judgment Void” | TURNER v. DEUTSCHE BANK

Mississippi Appeals Court Reversal “Service of Process Fail, Default Judgment Void” | TURNER v. DEUTSCHE BANK


3 We note that Turner’s argument that Deutsche Bank possessed unclean hands is an equitable defense to the merits of this lawsuit. This is an issue for the chancery court to consider on remand.

ANGELA L. TURNER

v.

DEUTSCHE BANK NATIONAL TRUST
COMPANY

Excerpts:

¶1. Deutsche Bank National Trust Company initiated a foreclosure action in the Warren County Chancery Court and attempted to serve Angela Turner by publication. But before doing so, it neither certified Turner was a non-resident of Mississippi nor alleged she could not be located in the state after a diligent inquiry. Because we find service of process did not strictly comply with the governing rules, we reverse the chancellor’s refusal to set aside the default judgment she entered on behalf of Deutsche Bank when Turner did not respond. We remand the case for further proceedings.

[…]

¶11. Although Deutsche Bank published a summons in the newspaper for three consecutive weeks and filed proof of the publication, Deutsche Bank did not comply with Rule 4(c)(4)(A). It is undisputed that Deutsche Bank never filed a sworn petition or affidavit attesting that Turner was a nonresident or could not be found in Mississippi after a diligent inquiry. Therefore, it follows that Deutsche Bank did not comply with any of the remaining requirements for information that must be included in the petition or affidavit.

¶12. “The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (16) (Miss. Ct. App. 2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (33).

[…]

¶20. Because service of process in this case failed to comply with Rule 4(c), we find the default judgment entered against Turner is void. Caldwell, 533 So. 2d at 417-18 (finding judgment void for defective process by publication). Thus, the chancery court erred in refusing to set the void judgment aside under Rule 60(b). We reverse and remand for further proceedings in which Deutsche Bank will have the opportunity to serve Turner with process.3

[…]

[ipaper docId=57973243 access_key=key-186gkk5ce8159fjpobb height=600 width=600 /]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (0)

Housing Wire Again Runs PR Masquerading as News on Behalf of Its Big Client, Lender Processing Services

Housing Wire Again Runs PR Masquerading as News on Behalf of Its Big Client, Lender Processing Services


Naked Capitalism- Yves Smith

The very fact that this item “LPS fires back with motion seeking sanctions against Alabama attorney,” was treated as a news story by Housing Wire is further proof that Housing Wire is above all committed to promoting client and mortgage industry interests and only incidentally engages in random acts of journalism.

LPS is desperate to create a shred of positive-looking noise in the face of pending fines under a Federal consent decree, mounting private litigation, and loss of client business under the continued barrage of bad press. Housing Wire, who has LPS as one of its top advertisers, is clearly more than willing to treat a virtual non-event as newsworthy to help an important meal ticket.

If you know anything about litigation, particularly when small fry square off against large companies, it’s standard for the well funded party to engage in a war of attrition against the underdog. One overused device is to threaten or file for sanctions. Even when they are weak or groundless, they still waste opposing counsel’s time and energy.

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (0)

Fannie Mae is adding fourteen jurisdictions to their attorney network

Fannie Mae is adding fourteen jurisdictions to their attorney network


Fannie Mae is adding the following fourteen jurisdictions (the new jurisdictions) to the mandatory retained attorney network:

Alaska, Idaho, Mississippi, Oregon,
Arkansas, Kansas, Nebraska, Utah
Delaware. Kentucky, New Mexico
District of Columbia, Maine, Nevada

[ipaper docId=49946117 access_key=key-1ecvxgr771j5ug8pn5wa height=600 width=600 /]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (0)

S.D. Mississippi Order Denying Summary Judgment HOOTEN v. OCWEN LOAN SERVICING

S.D. Mississippi Order Denying Summary Judgment HOOTEN v. OCWEN LOAN SERVICING


JAMES KEITH HOOTEN, et al. GERRY RENEE HOOTEN, Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

Cause No. 1:09cv491-LG-RHW.

United States District Court, S.D. Mississippi, Southern Division.

January 11, 2011.

MEMORANDUM OPINION AND ORDER DENYING SUMMARY JUDGMENT

LOUIS GUIROLA Jr., District Judge.

BEFORE THE COURT is Defendant Ocwen Loan Servicing, LLC’s Motion for Summary Judgment [30]. Plaintiffs James Keith and Gerry Renee Hooten initiated this action against their mortgage holder after their home was lost in a tax sale. Ocwen argues (1) it owed no contractual duty to pay the past due taxes, (2) the Statute of Frauds bars any oral modifications, (3) the Hootens released Ocwen from all claims, (4) and the taxes were not escrowed. The Court has considered the parties’ submissions[1] and the relevant legal authority. The motion is denied.

Continue below…

[ipaper docId=47057141 access_key=key-2jjub4cf8tdnhp6iu0fc height=600 width=600 /]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (2)

SFF BOMBSHELL- DEPOSITION TRANSCRIPT OF LPS/ FIDELITY BILL NEWLAND

SFF BOMBSHELL- DEPOSITION TRANSCRIPT OF LPS/ FIDELITY BILL NEWLAND


The latest bombshell follows with a brilliant 325 Pg. Deposition of LPS/ Fidelity’s Bill Newland.

Feel free to upload docs using email a tip link located above the site.

EXCERPTS:

2   Q    Sure.  Are there any attorneys who are not
3   members of the Fidelity — or the LPS attorney network
4   who can access your Process Management system?
5        A    Not that I’m aware of.
6        Q    And is it a fact that the only attorneys who
7   are using Process Management are attorneys who have
8   signed a referral agreement with LPS?
9        A    That would be correct.
10        Q    So, while your clients are free to choose
11   whomever as a foreclosing attorney, if they are an MSP
12   user and they are an LPS — they have an LPS agreement
13   with you for Default Solutions, the only attorneys
14   available on LPS system are attorneys who have signed
15   a contract with LPS?
16        A    That have signed a contract with LPS, yes.

<SNIP>

3        Q    So I just want to be sure.  What you’re
4   testifying to is that there is no compensation ever
5   paid by the servicer to LPS Default Solutions for all
6   this work that it does on behalf of the servicer with
7   respect to the foreclosure?
8        A    No.
9        Q    There is compensation or there is not
10   compensation?
11        A    No, there’s no compensation.
12        Q    Is it your testimony then that the only fees
13   which LPS Default Solutions collects with respect to
14   the foreclosure of any given loan is the
15   administrative support fee charged to the network
16   attorneys?

17        A    Yes.
18        Q    And the division of LPS Default Solutions
19   which we are here about today and which you are
20   testifying as a 30(b)(6) representative, the only
21   source of income it derives for its work with respect
22   to foreclosure is the administrative support fee?

23        A    That’s my understanding.


Continue below to the transcript…

[ipaper docId=45556213 access_key=key-rvgb96qx4uuxvufi2md height=600 width=600 /]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (4)

IN RE BURKS v. COUNTRYWIDE HOME LOANS SERVICING, LP 4/12/2010

IN RE BURKS v. COUNTRYWIDE HOME LOANS SERVICING, LP 4/12/2010


In re: JAMES L. BURKS, JR.
JAMES L. BURKS, JR., Plaintiff,
v.
COUNTRYWIDE HOME LOANS SERVICING, LP, AND UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendants.

Case No. 09-10170-DWH, Adv. Proc. No. 09-1064-DWH.

United States Bankruptcy Court, N.D. Mississippi.

April 12, 2010.

OPINION

DAVID W. HOUSTON III, Bankruptcy Judge

On consideration before the court is a motion for partial summary judgment filed by the defendant, Countrywide Home Loans Servicing, LP, (“Countrywide”), now known as BAC Home Loans Servicing, LP, (“BAC”); a response to said motion having been filed by the plaintiff, James L. Burks, Jr., (“debtor”); and the court, having heard and considered same, hereby finds as follows, to-wit:

I.

The court has jurisdiction of the subject matter of and the parties to this proceeding pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157. This is a core adversary proceeding as defined in 28 U.S.C. § 157(b)(2)(A), (B), and (O).

II.

The debtor filed a voluntary petition for relief pursuant to Chapter 13 of the Bankruptcy Code on January 15, 2009. He filed the subject complaint on April 16, 2009, against Countrywide, now known as BAC, and the United States Department of Housing and Urban Development, (“HUD”).

The debtor executed a primary promissary note and a deed of trust to purchase his residence on August 31, 2002. The original beneficiary in the deed of trust was Mortgage Electronic Registration Systems, Inc. The underlying loan is currently being serviced by BAC, as the successor to Countrywide, and the amount of the indebtedness set forth in BAC’s proof of claim is $109,112.21.

The primary note and deed of trust were insured by HUD. When the debtor fell behind in his payments on the primary note, HUD paid $8,878.77 to Countrywide on debtor’s behalf under HUD’s Partial Claim Program. To provide security for this disbursement, on June 13, 2006, the debtor executed a subordinate note and deed of trust in favor of HUD encumbering his residence.

The debtor alleged in Count 1 of his complaint that none of the documents pertaining to either of the above described loans were signed by his wife, Shawna Yvette Dawson-Burks. Consequently, he contended, pursuant to Miss. Code Ann. §89-1-29, that neither of the deeds of trust were valid as liens against his and his wife’s homestead due to the lack of his spouse’s signature.

Motions for partial summary judgment as to Count 1 of the complaint were filed by the debtor, BAC, and HUD. The court concluded that there were no genuine issues of material fact remaining in dispute as to the debtor’s Count 1 claim against BAC and granted BAC’s motion for partial summary judgment. HUD’s joinder in BAC’s motion for partial summary judgment was denied. The debtor’s motion for partial summary judgment as to the invalidity of HUD’s unsecured non-purchase money deed of trust was sustained. (See the court’s opinion and order, both dated December 21, 2009.)

BAC has now filed this second motion for partial summary judgment asserting that it is entitled to a judgment as a matter of law as to the remaining counts of the debtor’s complaint. The debtor has alleged that BAC and its predecessor, Countrywide, charged improper and unauthorized fees in violation of § 506 of the Bankruptcy Code and Rule 2016, Federal Rules of Bankruptcy Procedure. The debtor objected to BAC’s proof of claim and additionally asserted that BAC and/or Countrywide committed violations of the automatic stay.

III.

Summary judgment is properly granted when pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Bankruptcy Rule 7056; Uniform Local Bankruptcy Rule 18. The court must examine each issue in a light most favorable to the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Phillips v. OKC Corp., 812 F.2d 265 (5th Cir. 1987); Putman v. Insurance Co. of North America, 673 F.Supp. 171 (N.D. Miss. 1987). The moving party must demonstrate to the court the basis on which it believes that summary judgment is justified. The nonmoving party must then show that a genuine issue of material fact arises as to that issue. Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.29 265 (1986); Leonard v. Dixie Well Service & Supply, Inc., 828 F.2d 291 (5th Cir. 1987), Putman v. Insurance Co. of North America, 673 F.Supp. 171 (N.D. Miss. 1987). An issue is genuine if “there is sufficient evidence favoring the nonmoving party for a fact finder to find for that party.” Phillips, 812 F.2d at 273. A fact is material if it would “affect the outcome of the lawsuit under the governing substantive law.” Phillips, 812 F.2d at 272.

The court notes that it has the discretion to deny motions for summary judgment and allow parties to proceed to trial so that the record might be more fully developed for the trier of fact. Kunin v. Feofanov, 69 F.3d 59, 61 (5th Cir. 1995); Black v. J.I. Case Co., 22 F.3d 568, 572 (5th Cir. 1994); Veillon v. Exploration Services, Inc., 876 F.2d 1197, 1200 (5th Cir. 1989).

IV.

This court is of the opinion that this adversary proceeding has numerous material factual issues remaining in dispute. The debtor’s payment history and the methodology employed by BAC/Countrywide in the application of the debtor’s payments must be developed through an evidentiary hearing. The parties opposing views regarding the significance of the financial records have been made evident in telephonic conferences conducted by the court.

In summary, because of the aforesaid factual disputes, the court determines that BAC’s motion for partial summary judgment is not well taken.

A separate order will be entered consistent with this opinion.

Posted in bank of americaComments (1)


GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Advertise your business on StopForeclosureFraud.com
Kenneth Eric Trent, www.ForeclosureDestroyer.com

Archives